Citation Nr: 1528314
Decision Date: 07/01/15 Archive Date: 07/15/15
DOCKET NO. 14-00 257 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa
THE ISSUES
1. Entitlement to an initial evaluation in excess of 10 percent for biceps tendonitis, status post left (major) subacromial bursectomy and arthroscopy.
2. Entitlement to an effective date earlier than February 7, 2013 for the award of an initial 20 percent evaluation for chronic low back pain.
REPRESENTATION
Appellant represented by: A. B. Kretkowski, Attorney
ATTORNEY FOR THE BOARD
Stephen F. Sylvester, Counsel
INTRODUCTION
The Veteran served on active duty from June 1992 to January 2007.
This case comes before the Board of Veterans' Appeals (Board) on appeal of January 2012 and April 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.
Based on various Notices of Disagreement, as well as a June 2013 Substantive Appeal and correspondence from the Veteran's attorney dated in March 2014, it is clear that the Veteran does not, in fact, seek a current evaluation in excess of 20 percent for his service-connected low back disability, but, rather, an effective date prior to February 7, 2013 for the award of a 20 percent evaluation for that same low back disorder. Accordingly, the issue has been recharacterized as such on the title page of this decision.
Finally, for reasons which will become apparent, the appeal as to the issue of an increased rating for the Veteran's service-connected left shoulder disability is being REMANDED to the Agency of Original Jurisdiction (AOJ) for additional development. VA will notify you if further action is required on your part.
FINDINGS OF FACT
1. To the extent that, prior to February 7, 2013, the Veteran's service-connected low back disability was manifested by muscle spasms, those muscle spasms were not of a severity sufficient to produce an abnormal gait or abnormal spinal contour.
2. The Veteran service-connected low back disability was manifested by muscle spasms severe enough to result in an abnormal gait no earlier than February 7, 2013.
CONCLUSION OF LAW
The criteria for an effective date earlier than February 7, 2013 for the award of an initial 20 percent evaluation for the Veteran's service-connected low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5110 (West 2014); 38 C.F.R. §§ 3.400, 4.71a and Part 4, Diagnostic Code 5237 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
As service connection, an initial rating, and an effective date for the Veteran's low back disorder have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. See Hartman v. Nicholson, 43 F.3d 1311 (Fed. Cir. 2007). Accordingly, further discussion of VA's compliance with VCAA notice requirements would serve no useful purpose.
Moreover, VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. In that regard, the Veteran was provided the opportunity to present pertinent evidence and testimony at all stages of the appeal process. Moreover, neither the Veteran nor his attorney has asserted a failure by VA to assist him with his claim. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c) (2014).
Finally, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
Earlier Effective Date
VA law and regulation provides that, unless provided otherwise, the effective date of an initial award of disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (2014); 38 C.F.R. 3.400(b)(2) (2014).
Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2014). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2014). Other applicable, general policy considerations are: interpreting reports of examinations in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability [38 C.F.R. § 4.2 (2014)]; and resolving any reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3 (2014). Where there is a question as to which of two evaluations apply, a higher evaluation is to be assigned where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. 4.7 (2014). Finally, functional impairment is to be evaluated on the basis of lack of usefulness, and the effect of the disability upon the Veteran's ordinary activity. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
In general, the degree of impairment resulting from a disability is a factual termination, with the Board's primary focus in such cases being upon the current severity of the disability. See Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). In Fenderson v. West, 12 Vet. App. 119 (1999), however, it was held that the Francisco rule does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with the Veteran's low back disorder. Rather, at a time of an initial rating, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson, 12 Vet. App. at 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).
Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and any part which becomes painful on use must be regarded as seriously disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2014); see also 38 C.F.R. §§ 4.45, 4.59 (2014).
Ratings are to be based as far as practicable upon the average impairment of earning capacity, with the additional proviso that the Secretary shall, from time time, adjust the Schedule of Ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluation is found to be inadequate, the Under Secretary for Benefits, or the Director of Compensation and Pension Service, upon field station submission, is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321 (2014) an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture, with such related factors as a marked interference with employment, or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2014).
In the case at hand, in a rating decision of January 2012, the RO granted service connection and a 10 percent evaluation for a low back disability, effective from March 10, 2008, the date of receipt of the Veteran's initial claim for service connection. The Veteran voiced his disagreement with the assignment of that 10 percent evaluation, with the result, that, in a subsequent rating decision of April 2013, the Veteran's 10 percent evaluation was increased to 20 percent, effective from February 7, 2013, the date of a VA examination. The Veteran subsequently voiced his disagreement with the assignment of the February 7, 2013 effective date for the award of a 20 percent evaluation, and the current appeal ensured.
The Veteran in effect argues that, given that his current low back symptomatology, for which a 20 percent evaluation has been assigned, is essentially identical to that evident at the time of the filing of his initial claim, that 20 percent evaluation should be made effective from the date of the initial claim, which is to say, March 10, 2008.
In that regard, the Board notes that, during the course of a VA outpatient neurology consult in early May 2008, the Veteran gave a history of chronic low back pain which had reportedly begun approximately six to seven years earlier, at which time the Veteran fell into a valve while in firefighting school, injuring his low back. According to the Veteran, his back had "never been the same since." Reportedly, the Veteran experienced a chronic dull pain of approximately two to three out of 10 in severity all of the time, with occasional sharp stabbing pains of unknown frequency. The Veteran initially indicated that lifting heavy objects and playing with his children made his pain worse. According to the Veteran, he had received several epidural injections in the past, with the last being from three to four years ago, none of which helped his back pain. Reportedly, radiographic studies of the Veteran's lumbosacral spine conducted in March 2008 were unremarkable. Moreover, magnetic resonance imaging of the spine conducted in January 2008 showed only minimal lumbar spine spondylosis, in conjunction with a small left paracentral disc protrusion which did not narrow the canal at the level of the 11th and 12th thoracic vertebrae.
Noted at the time of neurologic evaluation was that the Veteran displayed a very cautious and apprehensive gait. However, with encouragement, he was able to toe, heel, and tandem walk normally. Initially, the Veteran declined doing tandem walking without holding onto something, but was encouraged to walk down the center of the hallway, which he could do quite well. According to the examiner, the Veteran's station and gait at the time of evaluation were within normal limits.
At the time of subsequent VA outpatient treatment in October 2008, it was noted that the Veteran had undergone an extensive workup for back pain, all of which had come back negative. Moreover, according to neurology, the Veteran's back pain could not be "fixed" with surgery. Noted at the time was that the Veteran had severe muscle spasms in his back with minimal palpation.
On VA orthopedic examination in March 2009, it was noted that the Veteran's claims folder and medical records were available, and had been reviewed. Reportedly, at the time of medical board proceedings in 2005, the Veteran gave a history of back pain since December of 1995, at which time he reportedly backed into a valve stem while in firefighting training. No bruising was noted at the time when the Veteran was seen in sick call. Nor was there any evidence of swelling or lacerations. Physical examination revealed some contusion of the back muscle secondary to trauma. Further examination showed the Veteran to have a steady gait, with 5/5 motor strength. Tests of straight leg raising showing buttock pain on the right, but negative findings on the left. Sensation was within normal limits, as were deep tendon reflexes. Radiographic studies of the Veteran's spine conducted in 2002 were likewise within normal limits. Reportedly, magnetic resonance imaging conducted in 2002 showed evidence of mild disc degeneration and bulging and a tear, though without disc material herniation. Reportedly, two spine surgeons, a neurosurgeon and an orthopedic surgeon, did not feel that surgery was appropriate for the Veteran's back problem.
When questioned, the Veteran gave a history of severe low back flare-ups. However, he denied any problems within incapacitating episodes. The Veteran's gait was within normal limits, and there was no evidence of any back spasm or atrophy. Nor was there evidence of muscle spasms, localized tenderness, or guarding severe enough to produce an abnormal gait or abnormal spinal contour.
Range of motion measurements showed flexion from 0 to 90 degrees, with extension from 0 to 20 degrees, right and left lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 15 degrees. Significantly, at the time of examination, there was no additional limitation following three repetitions of range of motion. Noted by the examiner was that the Veteran was somewhat hypersensitive and histrionic to light touch, notwithstanding the presence of diffuse tenderness over the entire lumbar spine, the right lower paralumbar musculature, and the right sacroiliac joint. The pertinent diagnosis noted was chronic low back pain.
At the time of a subsequent VA medical examination on February 7, 2013, it was once again noted that the Veteran's claims folder and medical records were available, and had been reviewed. According to the examiner, the Veteran's current diagnosis was mild degenerative disc disease with chronic back pain and right leg pain, which was referred muscle pain, and not radicular/neurologic in nature, given that the Veteran had a normal neurological exam, normal electromyographic and nerve conduction studies, and imaging which showed no lesion which would cause radiculopathy.
Range of motion measurements conducted at the time of examination showed flexion to 90 degrees, with extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. According to the examiner, range of motion measurements conducted by physical therapy the same day showed much better range of motion than what the Veteran displayed on examination. Significantly, according to the examiner, there was no objective reason why the Veteran would be so limited in range of motion.
During the course of repetitive use testing, it was noted that, following the second time the Veteran performed forward flexion, he slumped down onto the examination table as he recovered, and had to recover for 50 seconds before he could complete the second round of range of motion. At the time, the Veteran reported increased pain in his lower back. According to the examiner, there was no objective reason for the Veteran not to be able to perform three rounds of range of motion, or for the lack of range of motion he displayed. Rather, embellishment appeared to be present with significant pain behaviors.
Noted at the time of examination was that the Veteran displayed localized tenderness or pain to palpation in the soft tissues of the thoracolumbar spine. More specifically, there was tenderness in the area between the third lumbar vertebra and fist sacral segment, and to the right of those levels, accompanied by significant pain behaviors. According to the examiner, at a time of examination, the Veteran exhibited guarding or muscle spasm of the thoracolumbar spine severe enough to result in an abnormal gait. However, the Veteran displayed pain behaviors and a depressed mood suggestive of a significant contribution of psychological factors to his pain. In that regard, magnetic reasoning imaging conducted in conjunction with the Veteran's examination showed mild lower lumbar degenerative disc disease, in conjunction with an intrathecal cyst in the spinal canal at the level of the second sacral vertebra, most likely representative of an arachnoid cyst, but with no evidence of spinal stenosis. Significantly, in the opinion of the examiner, the Veteran's overall magnetic reasoning imaging testing was unremarkable, in that it did not in any way explain the Veteran's pain levels exhibited at the time of examination. Moreover, according to the examiner, in light of the Veteran's excessive pain behaviors and the lack of objective evidence that his back pain was physiological, it was very likely that the Veteran's mood disturbance was significantly contributing to his physical complaints, with the result that a portion of his pain was nonphysiologic in nature.
Pursuant to applicable law and regulation, the criteria for rating diseases and injuries of the spine apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. An evaluation of 10 percent is granted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. An evaluation of 10 percent may also be granted for muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour. A higher evaluation of 20 percent is not warranted unless there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a combined range of motion of the thoracolumbar spine not greater than 120 degrees. A higher evaluation of 20 percent is likewise not warranted unless there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a and Part 4, Diagnostic Code 5237 (2014).
In like manner, a 10 percent evaluation is warranted where there is evidence of intervertebral disc syndrome productive of incapacitating episodes having a total duration of at least one week but less than two weeks during the previous 12 month period, with an incapacitating episode being defined as a period of acute signs and symptoms due to intervertebral disc syndrome which requires bed rest prescribed by a physician and treatment by a physician. A 20 percent evaluation would require demonstrated evidence of incapacitating episodes having a total duration of at least two weeks but less than four weeks during the previous 12 month period. 38 C.F.R. § 4.71a and Part 4, Diagnostic Code 5243 (2014).
As noted above, the effective date of an initial award of disability compensation is to be fixed in accordance with the facts found, but in any case shall not be earlier than the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2014). In the case at hand, it is clear that the Veteran's "entitlement" to a 20 percent evaluation for his service-connected low back disability arose no earlier than February 7, 2013, the date of the aforementioned VA examination. In that regard, while prior to that time, there was evidence of muscle spasm of the Veteran's thoracolumbar spine, that muscle spasm was not of a severity sufficient to produce an abnormal gait or abnormal spinal contour. Nor was there evidence of a limitation of forward flexion of the thoracolumbar spine or combined range of motion of the thoracolumbar spine sufficient to warrant the assignment of a 20 percent evaluation. Not until the time of the February 7, 2013 VA examination did the Veteran exhibit muscle spasm of a severity sufficient to result in an abnormal gait. Under the circumstances, the Veteran's "entitlement" to a 20 percent evaluation for his service-connected low back disability "arose" no earlier than that date. Accordingly, an effective date earlier than February 7, 2013 for the award of a 20 percent evaluation for the Veteran's service-connected low back disability is not warranted.
ORDER
Entitlement to an effective date prior to February 7, 2013 for the award of an initial 20 percent evaluation for chronic low back pain is denied.
REMAND
In addition to the above, the Veteran seeks an increased evaluation for his service-connected left (major) shoulder disability. However, a review of the record raises some question as to the current severity of that particular disability.
In that regard, it would appear that the Veteran last underwent a VA examination for the purpose of determining the severity of his service-connected left shoulder disorder in February 2013, at this point, approximately two and one-half years ago. Moreover, in February 2014, a VA examiner, in response to the question whether pain, weakness, fatigability, or incoordination attributable to the Veteran's left shoulder disability could significantly limit his functional ability, either during flare-ups, or when the joint was used repeatedly over a period of time, indicated that it was not possible to determine the answer to that question without resorting to mere speculation, inasmuch as there was no conceptual or empirical basis for making such a determination without directly observing function under those conditions. Significantly, the Veteran's attorney has argued that the RO should not have relied on the aforementioned opinion, inasmuch as it ignored the Veteran's reports that movement "above shoulder height was painful." Moreover, according to the Veteran's attorney, the RO ignored entirely the argument presented in a June 2014 Notice of Disagreement regarding the potential application of another diagnostic code, specifically, Diagnostic Code 5202, providing for a 20 percent disability rating for "recurrent dislocation of the scapulohumeral joint." This was felt to be of particular significance given the Veteran's complaints of repeated dislocations of his left shoulder.
Under the circumstances, the Board is of the opinion that an additional, more contemporaneous examination would be appropriate prior to a final adjudication of the Veteran's claim for increase. See Snuffer v. Gober, 10 Vet. App. 400 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994).
Accordingly, and in light of the aforementioned, the case is REMANDED to the AOJ for the following actions:
1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to September 2014, the date of the most recent medical evidence of record, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his attorney should be informed of any such problem.
2. The Veteran should then be afforded an additional VA orthopedic examination in order to more accurately determine the current severity of his service-connected left shoulder disability. The Veteran is hereby notified that it is his responsibility to report for the examination, and to cooperate in the development of his claim. The Veteran is further advised that the consequence for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable.
Following completion of the examination, the examiner should provide a detailed review of the Veteran's pertinent medical history and current complaints, as well as the nature and extent of his service-connected left shoulder disability. In particular, the examiner should specifically comment regarding any and all limitation of motion (including additional limitation of motion following repetitive use resulting from pain, weakness, fatigue, a lack of endurance, and/or incoordination). The examiner should also discuss factors associated with disability, such as objective indications of pain on pressure or manipulation. Finally, the examiner should inquire as to whether the Veteran experiences flare-ups associated with his service-connected left shoulder disability. To the extent possible, any additional functional loss or limitation of motion attributable to such flare-ups should be described.
A complete rationale must be provide for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. In addition, the examiner must specify in his report that the claims file, as well as the Veteran's Virtual VA and Veterans Benefits Management System electronic records, have been reviewed.
3. The AOJ should then review the aforementioned report to ensure that it is in complete compliance with this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA and the Veterans Benefits Management System, as appropriate. If the report is deficient in any manner, the AOJ must implement corrective procedures.
4. The AOJ should then readjudicate the Veteran's claim for an initial evaluation in excess of 10 percent for service-connected biceps tendonitis, status post left (major) subacromial bursectomy and arthroscopy. Should the benefit sought on appeal remain denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case (SSOC). Specifically, this adjudication must take into consideration the potential application of the relevant schedular criteria contained in 38 C.F.R. § 4.71a, Diagnostic Code 5202, regarding recurrent dislocation of the scapulohumeral joint. Following this, an appropriate period of time should be allowed for response.
Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (2014).
______________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs